The longest section in Australia’s Consitution, by far, is Section 15 on replacing dead and resigning senators. It came into the Constitution after a referendum in 1977 when Malcolm Fraser was still trying to prove he was a decent chap after all and would never do what awful Joh did by appointing someone not of the dead senators’ party.
It was passed at a time of unprecedented mistrust of politicians of each other. All t’s had to be crossed and all i’s dotted.
The one section takes up more space than the whole list of powers of the Commonwealth Parliament. It rabbits on attempting to answer all the sceptics’ and politicians’ “”what ifs?”
The section should have read: “”A senator elected as a member of a political party who resigns or dies will be replaced by a person from that party.”
True, brevity inevitably causes ambiguity. What if the party goes out of existence? What if it changes its name? What if the senator had changed parties? etc etc. But these questions are not for the Constitution; they are for a constitutional court (the High Court) to work out.
It is impossible to anticipate every political trick in a Constitution, so futile to try.
Constitutions only work if people want them to work. Downer is quite wrong when he said the Australian Constitution has worked well for nearly a century. What has worked well is not the Constitution, but the politicians and courts using it. Indeed, the words of the Constitution failed Australia dismally in 1974-75 (replacing Labor’s Senator Bert Milliner with non-Labor nominee Albert Field and the sacking of Whitlam). There were no words.
But it would be unfortunate for Australia if that one event were to colour the way we go about reshaping the Constitution; if we insist on detail because we do not trust politicians to work within its spirit.
Other than 1974-75, Australian politicians have a long history of following convention. And there have been numerous examples since.
When Hawke won in 1983, and Fraser was caretaker Prime Minister for a several days, John Howard, as caretaker Treasurer, signed into effect the wishes of the Treasurer elect something Howard personally disagreed with. Michael Field and Rosemary Follett both resigned when losing the confidence of the House. In the ACT the signature of the Chief Minister is required to proclaim an Bills passed by the Assembly. Ms Follett has signed into law every passed Bill, including a dozen she personally voted against.
Political and constitutional convention works in Australia. Events of 1974-75 were an aberration. Fix that aberration, by all means, but do not allow it to colour the framing of the whole document so we end up with a Constitution full of clauses like Section 15 _ a lifeless lawyers’ labyrinth of a document dogged with Downeresque detail, impossible for humans to read.
The task for constitutional drafters is to craft a document that gives guidance with reasonable certainty as to the fundamentals of how the goverance of the country will work, without attempting to lay down all the detail.
Downer’s call for detail (I think it was his fourth of six fairly inconsistent stands on the republic) was a scare-campaign attempt to show that Keating has a hidden agenda under which the states would be abolished and Australia would become a socialist salt-mine under an absolutist President Keating.
To the contrary. Keating wants to retain the present parliamentary structure but recognises that the biggest threat to it would be a president elected directly by the people, because one politician from each side will run, and one will win and get big ideas. But the thickos in voterland will take some time to realise that an indirect election by politicians (two-thirds majority of a joint sitting) is the way to ensure a non-politician is elected (because each side will veto a candidate from the other). But to spell out now the detail of an indirect election would invite an allegeric reaction to the republic that Keating holds so dear.